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Monday, May 16, 2011

The Supreme Court today denied certiorari in Mohamed v. Jeppesen Dataplan, a Ninth Circuit Court of Appeals decision that kicked out of court a lawsuit claiming that the victim had been tortured. The Ninth Circuit en banc panel voted 6-5 to dismiss the case, upholding an assertion of the state secrets privilege, first raised by the Bush Administration and now by the Obama Administration, that the need to protect state secrets trumps the ability of former prisoners to sue over alleged torture.

The ruling is another blow to accountability for torture that took place under the Bush Administration. According to the New York Times,

“The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan,that the plaintiffs said had arranged the rendition flights that took them toMorocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed,had his bones broken in Morocco, where security agents also cut his skin with ascalpel and poured a stinging liquid into his wounds.”

The 9th Circuit opinion, which will remain in effect now that the Supreme Court has denied cert, “reluctantly” concluded that state secrets trump the “fundamental principles of our liberty, including justice, transparency, and accountability” in this case. Notably, the 9th Circuit’s decision held that the claims could not proceed “even assuming plaintiffs could establish their case solely through nonprivileged evidence.”

Alliance for Justice joined a letter signed by 20 other groups calling on the Department of Justice to implement a policy, as it promised, to ensure that there is transparency and accountability in cases like this where credible assertions of government wrongdoing have been raised. The Attorney General announced a policy in 2009 whereby DOJ would make referrals to the inspectors general of the CIA, DOJ, Defense Department, or other appropriate agency, when a civil complaint dismissed on state secrets grounds raised credible allegations of wrongdoing. When the judicial system fails to provide accountability and transparency by allowing cases to be dismissed on state secrets grounds, requiring an inspector general to investigate the allegations would provide some modicum of accountability.